Executive v Judiciary
Moments after highlighting the importance of judicial independence at State House on Wednesday, President David Granger told media operatives that he sees no need for Attorney General (AG) and Legal Affairs Minister Basil Williams to apologise to a High Court Judge as he was not found to be contemptuous. The President was questioned on the possibility of asking the AG to apologise to Justice Franklin Holder over an outburst in the High Court during a hearing in March.
However, President Granger feels that an apology is unwarranted based on an explanation that the AG gave of what transpired in court during the midst of the Carvil Duncan tribunal challenge case.
“If the Judge felt that his behaivour was in contempt, the Judge knew what he had to do – he did not cite the Attorney General for contempt. As things stand, I feel that the explanation given to me by the Minister of Legal Affairs adequately deals with the complaints which I received,” the President explained on Wednesday.
On March 23, 2017, AG Williams, in questioning whether or not the Judge had accurately recorded the evidence of witness Diana Persaud, told him that “the last person who told [him] what [he] should not say was a Magistrate and he is dead”.
“I could say what I want to say and when I want to say it, I have always been like that,” the AG further told the Judge.
Justice Holder in a report complaining to the Judiciary, said he walked out of the courtroom without adjourning the matter because of Williams’ behaviour but the AG said on numerous occasions that there was no need for him to apologise.
Probed further, the President stressed that nothing justifies the calls for an apology to be offered.
“Under the circumstances, I cannot see that there was anything which would have warranted, his being cited for contempt of court and that is the important thing that his behaviour was not contemptuous in court,” the Head of State stressed.
Last Monday, Justice Holder recused himself from the case but accusations of interference in the judiciary surfaced since the judge’s recusal came days after Prime Minister Moses Nagamootoo requested that he do so. Justice Holder had subsequently insisted that he made this decision in the interest of the administration of justice.
In the absence of the Attorney General last week, the Judge, giving reasons for his recusal, had explained to the court that the matter became politicised, and accused Williams of “egregious and disrespectful” behaviour which was “not necessarily contemptuous”.
However, former Speaker of the National Assembly and Senior Counsel, Ralph Ramkarran, weighing on the issue earlier this week, cited the work of internationally known legal experts, to posit his view that Judges should be careful about recusing themselves from a case because of perceived biases.
“The main basis for recusals by Judges, or other adjudicators, including Magistrates, is actual or potential bias or the appearance thereof. It is in the Judge’s discretion to do so,” Ramkarran had expressed.
Ramkarran, a former senior member of the Opposition, People’s Progressive Party (PPP) cited Professor of Law, Abimbola Olowofoyeku, who had posited in 2016 that inappropriate recusals have the potential to be very damaging.
“Professor Olowofoyeku suggested that recusal is inappropriate on such grounds as appeasement of a party, allegations by a party, personal attacks against the adjudicator, intellectual difficulty with a matter, pragmatism or avoiding a conundrum unrelated to bias.”
“Some principles to be considered are: objectively justifiable grounds; whether litigants are judge-shopping or judges are case-shopping; a real possibility of bias as apprehended by an informed observer and not a fanciful, tenuous, fantastic or superficial possibility,” he stated.
As such, the Senior Counsel said Professor Olowofoyeku urged that recusals ought only to be resorted to so that justice must be done and be seen to be done so as to maintain public confidence in the impartiality of Judges and to help maintain impartiality as a matter of fact.
“Judges, he said, need to respond to allegations of bias very carefully and with great care and circumspection. But they must show some (fortitude) in the process, (being) robust and strictly objective in their application of the jurisprudence.”
He said that this is “because the Judge or Judges rely on the Government or a member of it, such as the Head (of State), for confirmation of their appointment. Where the Chancellor and Chief Justice continue to hold acting appointments, it is inevitable that an enterprising lawyer will make an objection in a case in which the Government is a party.”Citing the case of Chile’s former Head of State, Augusto Pinochet, Ramkarran observed that during his hearing there was an allegation of potential bias in relation to one of the Judges. It was argued that because of the Judge’s wife’s position with Amnesty International, a party to the case, he should recuse himself.
Ramkarran said the test, as stated by the Professor, is whether the fair-minded and informed observer, after considering the facts, would conclude that there was a real possibility that the tribunal was biased.
Embattled Trade Unionist Carvil Duncan had moved to the courts to challenge the tribunal set up to determine if he should be removed from several constitutional posts in light of charges, which were laid against him. However, the High Court proceedings were left at a standstill, on account of the Judge leaving the courtroom without adjourning the matter, following statements made by the prosecuting counsel, Attorney General Basil Williams.
In a letter dated May 4, 2017, which was addressed to the Attorney General, Prime Minister Moses Nagamootoo raised concerns about having a fair trial in light of the incident.
“… I am of the opinion that neither the State, nor I, will receive fair hearing in the matter….in view of the foregoing, therefore, I authorise you to request that the Honourable Mr Justice Holder recuse himself from further hearing the matter,” the Prime Minister noted in a letter, which was forwarded to both the Chancellor of the Judiciary (ag) and Chief Justice (ag), as well as President David Granger.
After this request was tendered, Defence Attorney representing Duncan, Anil Nandlall had accused the Prime Minister and the Attorney General of engaging in “juvenile antics”, saying that the letter of request to the Judge was a “plot” that in effect “undermines” the tenets of democracy.
Nandlall had further highlighted that the principle of separation of powers may be under threat.
Justice Holder has deferred the Carvil Duncan case to the Chief Justice (ag) and the Chancellor (ag).